¹ Commonwealth of Australia Gazette, 1953, No. 56, p. 2563; printed in this Journal, Supp., Vol. 48 (1954), p. 102.

² In 1854 the Queen’s Advocate advised that foreigners would not be affected by whaling and sealing regulations outside the territorial waters of the Falkland Islands. Keith, Responsible Government in the Dominions (2nd ed., 1912), Vol. I, p. 373. Thereafter several opinions were delivered (e.g., 1855, Forsyth, Cases and Opinions on Constitutional Law, p. 217) in which there is some ambiguity concerning the overlap of international and constitutional law; e.g., in the opinions relating to the Newfoundland fishing legislation given in 1863, 1866, 1888, 1889, and 1890, Law Officers’ Opinions, C. O., Vol. I, No. 154; Vol. II, No. 400, Vol. IV, Nos. 134, 163, 164, 166, 168A, and 177. For the limitations on Newfoundland legislation, see Rhodes v. Fair-weather (1888), and Queen v. Delepine in Newfoundland Decisions (1897), pp. 321 and 378.

³ Law Officers’ Opinions, C. O., Vol. IV, Nos. 73 and 127.

⁴ Papers of the Legislative Council of Western Australia, 1888, 2nd Sess., No. 26.

⁵ 48 … 49 Vict., c. 60, s. 15(e).

⁶ Law Officers’ Opinions, C. O., Vol. IV, No. 152. See the discussion of the relationship of the power to the British Merchant Shipping legislation by Goldie in 1 Sydney Law Review (1953) 87.

⁷ The Queensland Pearl Shell and Bêche-de-mer Fisheries (Extra-Territorial) Act, No. 1 of 1888, s. 2.

⁸ The Western Australian Pearl Shell and Beche-de-mer Fisheries (Extra-Territorial) Act, No. 1 of 1889, s. 19. See the discussion of the constitutional limitations in Federal Council Debates, 1889, p. 47, and in Pari. Pap. 1885, C. 4481. Similarly the Commonwealth Whaling Act applies only to ships registered in Australia, No. 62 of 1935.

⁹ 63 … 64 Vict., c. 12, clause 7. Sec. 51 (x) was virtually a repetition of the fishery power of the Federal Council. See Official Records of the National Australian Conventions Debates, Adelaide, 1897, pp. 776–778; Sydney, 1897, 2nd Sess., pp. 1073–1074; Melbourne, 1898, pp. 1855–1874, particularly p. 1857.

¹⁰ No. 8 of 1952.

¹¹ Pearl Shell and Blche-de-mer Fishery Acts 1881–1931, 45 Vict., No. 2; 50 Vict., No. 2; 55 Vict., No. 29; 57 Vict., No. 7; 60 Viet., No. 32; 63 Vict., No. 3; 4 Geo. V, No. 12; 22 Geo. V, No. 10. Riesenfeld draws the conclusion that this legislation has operated over a wide area of high seas. Protection of Coastal Fisheries under International Law (1942), p. 170. This is based upon the widely accepted misconception that the maritime boundary of Queensland is the line drawn to define the islands forming part of the State. This line goes to the coast of Papua. The misconception appears in the memorandum submitted to the State Department by the United States Consul General in London in 1923 and reproduced in Hackworth, Digest of International Law, Vol. II (1941), p. 678; also in Cumbrae-Stewart’s article in 12 Journal of Comparative Legislation and International Law (1930) 299; in Goldie, loc. cit., p. 95, note; in Jessup, The Law of Territorial Waters (1927), p. 16; in Mouton, The Continental Shelf (1952), p. 140; and in the Reports of the Great Barrier Reef Committee, 1928, Vol. II, p. 97. The Law Officers, however, reported in 1863 and 1875 that the limits of Queensland did not extend over the sea, Law Officers’ Opinions, C. O., Vol. I, Nos. 185, 190, Vol. III, No. 53; the Queensland courts have never admitted such a jurisdiction, Chapman v. Rose, [1914] Q.S.R. 302; D. v. Commissioner of Taxes, [1941] Q.S.R. 218; and before the International Court in the Anglo-Norwegian Fisheries Case the United Kingdom, with the consent of the Commonwealth Government, denied the claim, Pleadings, Oral Arguments, Documents, Vol. II, p. 522. The Queensland legislation was, therefore, insufficient to found an exclusive right to the pearl beds.

¹² Pearling Act, 1912–24, 15 Geo. V, with amendments of 1928, 19 Geo. V, No. 7; 1929, 20 Geo. V, No. 11; 1931, 22 Geo. V, No. 14; 1932, 23 Geo. V, No. 17; 1935, 26 Geo. V, No. 20.

¹³ Goldie, loc. cit., p. 89.

¹⁴ H. of Bep. (Hansard), 1953, No. 1, p. 121.

¹⁵ Fisheries Act, No. 7 of 1952.

¹⁶ Pearl Fisheries Act, No. 8 of 1952.

¹⁷ Serventy in Fisheries Newsletter, 9, No. 3 (1950), pp. 18–20; and in 6 The Australian Geographer (1952) 13.

¹⁸ Tunis sponge fisheries: Smith, Great Britain and the Law of Nations, Vol. II (1935), p. 121; Granville Bay Fisheries: Gidel, Le Droit International Public de la Mer, Vol. I (1932), p. 489; Ceylon: Vattel, Droit des gens, Vol. I, Ch. 23, sec. 287; Pearl Fisheries Ordinance, 1925, Riesenfeld, op. cit., p. 169; Sardinian coral beds: Fulton, The Sovereignty of the Sea (1911), p. 697; Irish Sea Oyster Fisheries: 31 … 32 Vict., c. 45, s. 67, although there is no evidence that it was enforced against foreign nationals, Report from the Select Committee on Oyster Fisheries (1876), Vol. 8, p. 166; British Counter-Case in the Behring Sea Arbitration, Pari. Pap., U. S., No. 4 of 1893 (C. 6921).

¹⁹ Parl. Deb., H. C. 5 s., Vol. 164, cols. 1261–1262; Vol. 163, cols. 1417–1418; Publications of the League of Nations, 1929, V. 2, C. 74. M. 39. 1929. V, p. 162. See the opinion of Travers Twiss in Smith, Op. cit., p. 122, where he founded the claims of the Bey of Tunis on a “prescriptive enjoyment of the fructus,” and Hurst in 4 B. Y. (1923–1924) 40.

²⁰ Reply to the Questionnaire of the Preparatory Committee for the Codification of International Law, Publications of the League of Nations, 1929, V. 2, C. 74. M. 39. 1929. V, p. 166. See also François, A/CN. 4/42, pp. 55–57.

²¹ In this context it is usual to cite the Madias case of Annakumaru Pillai v. Muthupayal, [1904] 27 Ind. L.R. 551; A/CN. 4/60, p. 89. It seems, however, that that decision could be based on the conclusion that Palk’s Strait is inland waters rather than on the special status of the pearl beds themselves.

²² Mouton, op. cit., p. 268; Johnson in 27 B.Y. (1950) 332 et seq.; Beckett in Recueil des Cours de l’Académie de Droit International, Vol. 50 (1934), p. 218 et seq. There is agreement neither as to the running of time nor as to the facts necessary to constitute the running: Lindley, The Acquisition and Government of Backward Territory in International Law (1926), p. 178; Fauehille, Traié de Droit International Public (8th ed.), Vol. I, Pt. 2 (1925), p. 762; Venezuela Arbitration, British and Foreign State Papers, 1896–1897, Vol. 89, p. 57.

²³ It is true that in English law a title to the foreshore may arise by prescription, but the authorities clearly view this as an interest adverse to the Crown as a corporation sole. Benest v. Pipon (1829), 1 Knapp 60; Dickens … Kemp v. Shaw (1823), 1 L. J. (O.S.) K.B. 122; Foster v. Urban District Council of Warblington, [1906] 1 K.B. 648.

²⁴ Gaius, II, I; Inst. II. I. 1; Plautus, Bud. 4.3.36; Cicero, pro Rosc. 26. But see the opinion of Judge Alvarez in the Anglo-Norwegian Fisheries Case, I.C.J. Reports, 1951, p. 151, and the views of Johnson, loc. cit., p. 350.

²⁵ Hurst, loc. cit., p. 40, quoting Hall, International Law (8th ed., Higgins), p. 189, who, however, speaks only of the sea and not the sea bed; Higgins and Colombos, The International Law of the Sea (2nd ed., 1951), p. 282; Jessup, op. cit., p. 15; Mouton, op. cit., p. 144; Lindley, op. cit., p. 69; Oppenheim in Zeitschrift für Völherrecht, Vol. II (1908), p. 10, criticized by Westlake, International Law, Vol. I (1910), p. 203; Hall, Foreign Powers and Jurisdiction (1894), p. 243, note; Counter-Case of Her Majesty’s Government in the Behring Sea Arbitration, Parl. Pap., U. S., No. 3, 1893, p. 93. Sweden adopted this view in its communication to the International Law Commission, A/2456, p. 66; also François, A/CN. 4/SR. 207, par. 9.

²⁶ The Island of Palmas Arbitration, this Journal, Vol. 22 (1928), p. 867.

²⁷ There is nothing to support this generalized view of an abandonment of jurisdiction in Boroughs, Sovereignty of the British Seas (1920), Potter, Freedom of the Sea in History, Law and Politics (1924), or in Fenn, The Origin of the Right of Fishery in Territorial Waters (1926).

²⁸ Anglo-Norwegian Fisheries Case, I. C. J. Reports, 1951, pp. 130–131; this Journal, Vol. 46 (1952), pp. 358–359.

²⁹ François, A/CN. 4/SB. 120, par. 22; A/CN. 4/42, p. 59.

³⁰ Westlake, op. cit., pp. 190–191; Goldie, loc. cit.; Smith, op. cit., p. 122; Anninos, The Continental Shelf and Public International Law (Thesis, Neuehâtel, 1953), p. 63. The Abu Dhabi Award, cited below, speaks of sedentary fisheries as having a “customary” basis. See Hurst, “la condition, juridique du sous-sol qui se trouve au-dessous du lit de la haute mer se rapproche du statut d’une res nullius en ce que le premier occupant s’assure un titre qui sera bon contre tout le monde…. On peut admettre la même chose pour la surface du lit de la haute mer,” Annuaire de l’Institut de Droit International (1925), p. 160; Fulton, op. cit., p. 697; Cockburn, C. J., in Regina v. Keyn, [1876] L. E. 2 Ex. Div. 63; British Counter-Case in the Behring Sea Arbitration, below.

³¹ Hackworth, op. cit., p. 677.

³² No. 38 of 1953.

³³ No. 84 of Statutory Rules, 1953, schedule 3. A Proclamation proclaimed all Australian waters north of 27° south latitude, Commonwealth of Australia Gazette, 1953, p. 2684, pursuant to sec. 8 of the Pearl Fisheries Act, 1952. See also Proclamation No. 62, ibid., p. 2785.

³⁴ Commonwealth of Australia Gazette, 1953, No. 63, pp. 2785–2786.

³⁵ No. 7 of 1952.

³⁶ The Minister for Fisheries apparently admitted that this legislation would not operate in international law to affect foreign nationals when he drew a distinction between sedentary and other fisheries. H. of Rep. (Hansard), 1953, No. 1, p. 18. At present the necessity for conserving high seas fisheries does not validate an exclusive claim by the coastal state. Spiropoulos, A/CN.4/SR. 69, p. 27; Fenwick, International Law (3rd ed., 1948), p. 423; Selak, , this Journal , Vol. 44 (1950), p. 670 Google Scholar et seq.; Allen, 21 Washington Law Review (1946) 1 et seq., and this Jouenal, Vol. 47 (1953), p. 479; Mouton, op. cit., p. 72. The International Law Commission has accepted the proposition that pelagic fisheries and the shelf are unrelated. A/CN. 4/SR. 63, p. 16, SB. 69, p. 4; A/CN. 4/48; A/316, p. 22; A/CN. 4/L. 45, Add. 1, Ch. III; A/2456, p. 17.

³⁷ Commonwealth of Australia Gazette, 1953, No. 59, p. 2683.

³⁸ A line commencing at the most westerly point where the parallel 9°2' south latitude intersects the outer edge of the shelf; thence proceeding along that parallel to its intersection with meridian 135°38' east longitude; thence in a straight line to the intersection of the parallel 9°43' with the meridian 137°12’ with the meridian 141°2'; thence along that meridian to the mouth of the Benebach River.

³⁹ U. S. Proclamation No. 2667, 10 Fed. Reg. 12303; Exec. Order No. 9633, ibid., p. 12305; this Journal, Supp., Vol. 40 (1946), pp. 45, 47. See the Persian Gulf Proclamations in this Journal, Supp., Vol. 43 (1949), pp. 156, 185.

⁴⁰ Bahamas (Alteration of Boundaries) Order in Council, Statutory Instruments, 1948, No. 2574; British Honduras (Alteration of Boundaries) Order in Council, ibid., 1950, No. 1649; Falkland Islands (Continental Shelf) Order in Council, ibid., 1950, No. 2100; Jamaica (Alteration of Boundaries) Order in Council, ibid., 1948, No. 2575; U.N. Legislative Series, Laws and Regulations on the Regime of the High Seas, Vol. I, Pt. 1, Continental Shelf.

⁴¹ Abu Dhabi Arbitration Award, 1 International and Comparative Law Quarterly (1952) 255; Lauterpacht, in 27 B.Y. (1950) 389; François and Brierly in A/CN.4/SR.68, pp. 6–8; Hurst, in 34 Grotius Society Transactions (1949) 162; Young, , in this Journal , Vol. 42 (1948), p. 850 Google Scholar; Waldock, in 36 Grotius Society Transactions (1951) 137; Vallat, in 23 B.Y. (1946) 334; Memorandum on the Regime of the High Seas, A/CN.4/32, p. 81; A/CN.4/SR. 196, 197, 198.

⁴² Loc. cit., p. 853.

⁴³ In 2 Revista Española de Derecho International, I (1949) 64. See Kunz in 3 Revista de la Faculdad de Derecho de Mexico (1953) No. 10.

⁴⁴ Lauterpacht, loc. cit., p. 383; Mouton, op. cit., p. 22 et seq.

⁴⁵ A/CN.4/60. The most authoritative definition of the shelf so far given is that of the International Committee on the Nomenclature of Ocean Bottom Features: “The zone around the continent, extending from the low water line to the depth at which there is a marked increase of slope to greater depth. Where this increase occurs the term shelf edge is appropriate. Conventionally its edge is taken at 100 fathoms (or 200 metres) but instances are known where the increase of slope occurs at more than 200 or less than 65 fathoms. When the zone below the low water line is highly irregular, and includes depths well in excess of those typical of continental shelves, the term Continental Borderland is appropriate.” Minutes of Meeting held at Monaco, Sept. 22, 1952, App. B—Agreed Definitions, published in Union Géodésique Internationale, Bull. d’Inf., Vol. 2, No. 3, July, 1953, p. 555.

⁴⁶ A/CN.4/SR. 68, p. 13; see A/CN.4/48, Annex, Art. 1 of Draft, p. 54. Note 5 suggests that areas where exploitation is not possible are excluded. Cf. Azcárraga, loc. cit., on the theory of delimitation from the coast, and the criticisms of the exploitation test by Mouton, op. cit., p. 43; Lauterpacht, in A/CN.4/SR. 196, 197.

⁴⁷ A/CN.4/L.45, p. 12; A/CN.4/SR.196.

⁴⁸ H. of Rep. (Hansard), 1953, No. 1, p. 18.

⁴⁹ Abu Dhabi Award, loc. cit., p. 256.

⁵⁰ Only Mouton’s elaborate argument need be cited, p. 260 et seq., but the approach is fundamental in many comments on the topic.

⁵¹ Of course absence of protest is very relevant as a test of the value of unilateral acts, as Lauterpacht has shown, loc. cit. (note 41 above), p. 393 et seq., but it is not necessary to found a rule of law.

⁵² Lotus Case (1927), P.C.I.J., Ser. A., No. 10, p. 29.

⁵³ Abu Dhabi Award, loc. cit., p. 256.

⁵⁴ Rivier, Principes du Droit des Gens (1896), Vol. I, p. 36; Scelle, Précis de Droit des Gens (1934), Vol. II, p. 298.Google Scholar

⁵⁵ Lauterpacht, loc. cit., pp. 376–377; Crichton v. Samoa Navigation Co., Annual Digest of Public International Law Cases, 1925–26, Case No. 1.

⁵⁶ The International Law Commission has expressed its view that “it is not possible to base the principles of the sovereign rights of the coastal state exclusively on recent practice, for there is no question, in the present ease, of giving the authority of a legal rule to a unilateral practice resting solely upon the will of the states concerned.” It thus rejected the positivist approach in favor of an argument from general “principle and convenience,” based on the fact that the shelf has become an object of active interest to states, and that “general utility” demands that the coastal state have priority of exploitation. A/CN.4/L.45/Add. 1, Ch. III; A/2456, par. 73.

⁵⁷ Cf. Waldock, loc. cit., p. 141 et seq. The Argentine proclamation linked the shelf and the waters above it.

⁵⁸ Cf. Green in 4 Current Legal Problems (1951) 79; Mouton, op. cit., p. 267.

⁵⁹ Lauterpacht, loc. cit., p. 421.

⁶⁰ The International Law Commission took the view that the status of the shelf is independent of occupation. A/1316, p. 22; A/CN.4/L.45/Add. 1, Ch. III; A/2456, par. 72.

⁶¹ H. of R. (Hansard), 1953, No. 1, p. 18.

⁶² See Lauterpacht on the theory of legitimate interests and requirements of the international community, loc. cit., p. 376; Borchard, in this Journal, Vol. 40 (1946), p. 53; Fauchille, op. cit., p. 147; also the economic interests envisaged by the International Court in the Anglo-Norwegian Fisheries Case, I.C.J. Reports, 1951, p. 153, and the opinion of Judge Alvarez, at p. 157. The Commission has been careful to reserve the question of the nature and of the basis of the “sovereign rights attributed to the coastal State,” pointing out that “the considerations relevant to this matter cannot be reduced to a single factor.” A/CN.4/L.45, Add. 1, Ch. III; A/2456, par. 73.

⁶³ Island of Palmas Arbitration, loc. cit.; Waldock, loc. cit., p. 141; Mouton, op. cit., p. 292.

⁶⁴ Hall, International Law (3rd ed., 1890), p. 109; Smith, op. cit., p. 3; Westlake, Collected Papers (1914), p. 173.

⁶⁵ Lauterpacht, loc. cit., pp. 426–427.

⁶⁶ Legal Status of Eastern Greenland, P.C.I.J., Ser. A/B, No. 53, esp. pp. 45–46; Clipperton Island Arbitration, Annual Digest of Public International Law Cases, 1931–2, Case No. 50. Necessity, qualified by contiguity, has been the genesis of exceptions to the regime of the high seas. See, e.g., the discussion of Lord Stowell in Le Louis (1817), 2 Dods. 210 at p. 245, and Marshall, C. J., in Church v. Hubbart (1804), 2 Cranch 187 at p. 234; Croft v. Dunphy, [1933] A.C. 156. See Jessup on the Anti-Smuggling Act, this Journal, Vol. 31 (1937), p. 101; Anninos, op. cit., p. 66.

⁶⁷ The Commission pointed out that it is not possible to disregard the facts of geography, whether they be described in terms of “propinquity, contiguity, geographic cal contiguity, appurtenance or identity of the submarine areas in question with the non-submerged contiguous land.” A/CN.4/L.45, Add. 1, Ch. III; A/2456, par. 73.

⁶⁸ A/CN.4/SR. 68, p. 13.

⁶⁹ “The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources.” A/CN.4/L.45, Add. 1, Ch. III; A/2456, Art. 2. “The formulation thus adopted,” says the Report, “takes into account the views of those members of the Commission who attached importance to maintaining the language of the original draft and those who considered that the expression ‘rights of sovereignty’ should be adopted.” A/2456, par. 68.

⁷⁰ Mouton, op. cit., p. 269; Waldock, loc. cit., p. 142.

⁷¹ See Brierly in A/CN.4/SK. 68, p. 6.

⁷² See the comment by Anninos on the Qatar Arbitration, op. cit., p. 37, note 1.

⁷³ Q. Wright, Mandates under the League of Nations (1930), pp. 319, 449; Bentwich, The Mandate System (1930), p. 20; Brierly, in 11 B.Y. (1929) 217; Corbett, in 6 ibid. (1924) 135; Hall, in 24 ibid. (1947) 54; Van Maanen Helmer, The Mandate System (1929), p. 106; Evatt, in Australia and New Zealand International Law Journal, Vol. 1, p. 27.

⁷⁴ Op. cit., Vol. I, Ch. 23, sec. 295. He nevertheless admits that property can exist in respect of fisheries. A comment in 56 Yale Law Journal (1947) 365 suggests that claims made to pearls, oysters, sponges and coral under theories of occupation, prescription or acquiescence of other nations, manifest regulatory power rather than property right. In Att. Gen. for Canada v. Att. Gen. for Ontario, [1898] A.C. 700 at p. 709, it was held that under international law dominium passes with imperium only by express cession. But see Brief for the State of Texas in opposition to the Motion for Judgment, U. S. v. Texas (1950), 339 U. S. 707, No. 13, Original, Oct. Term, 1949, p. 96 et seq.

⁷⁵ 152 U. S. 1 at p. 13 (1893). Cf. Benest v. Pipon (1829), 1 Knapp 60; Johnson v. McIntosh (1823), 8 Wheat. 543 at p. 595.

⁷⁶ Borchard, , in this Journal , Vol. 40 (1946), p. 59 Google Scholar; Brief in Support of Motion for Judgment, U. S. v. California (1947), 332 U. S. 19, No. 12, Original, Oct. Term, 1946, pp. 58–59.

⁷⁷ Hale, De Jure Maria; Pufendorf, , De Jure Naturae et Gentium (Classics of International Law (No. 17), Vol. II (1934)), p. 565 Google Scholar; Bynkershoek, De Dominio Maris, Ch. II; Valin, L’Ordonnance de la Marine (1760), p. 640; Galiani, Dei Doveri dei Principi Neutrali (2nd ed., 1942), p. 321; Martens, Précis du droit des gens (Cobbett, 1802), p. 168; Azuni, , Droit Maritime de l’Europe, Vol. I (Johnson, 1806), p. 224 Google Scholar; Wheaton, Elements of International Law (1836), pp. 142–143; Hautefeuille, Des droits et des devoirs des nations neutres en temps de guerre maritime (1848), p. 232; Phillimore, , Commentaries upon International Law, Vol. I (1854), p. 212 Google Scholar, but compare his judgment in Regina v. Keyn, [1878] L. R. 2 Ex. Div. 63; Carnazza-Amari, Traité de droit international public (translated by Crocker, The Extent of the Marginal Sea (1919), p. 38); Field, Outlines of International Law (2nd ed., 1876), p. 21; Funck-Brentano & Sorel, Précis du droit des gens (1877), p. 375; Fiore, Nouveau droit international public (1885), sec. 805; Martens, , Traité de droit international (Leo, 1883), Vol. I, p. 505 Google Scholar; Pradier-Fodéré, Traité de droit international (1885), sec. 627; Maine, International Law (1888), p. 39; Imbart de Latour, La mer territoriale (1889), pp. 8, 19; Piédelièvre, , Précis de droit international public (1894), Vol. I, p. 335 Google Scholar; Hall, A Treatise on International Law (5th ed., 1904), pp. 152–153; Westlake, op. cit., p. 184; Hurst, in 4 B.Y. (1923–24) 34, although the Acts he cites support only a limited occupation and not a general principle; Lindley, op. cit., p. 63; Jessup, op. cit., pp. 116–117; Bustamante y Sirven, La mer territoriale (1930), p. 158; Gidel, op. cit., p. 331; François, , in Académie de droit international de La Haye, Recueil des Cours, Vol. 66 (1938), p. 47 Google Scholar; Brierly, The Law of Nations (3rd ed., 1942), p. 143; Scelle, Droit International Public (1944), p. 319; Hyde, , International Law (2nd ed., 1945), Vol. I, pp. 461–468 Google Scholar; Boss, International Law (1947), p. 139; Starke, An Introduction to International Law (1947), p. 120; Sehwarzenberger, , International Law (2nd ed., 1949), Vol. I, p. 149 Google Scholar; Daniel, Sovereignty and Ownership in the Marginal Sea (1950); Hyde, in 3 Baylor Law Review (1951) 172.

⁷⁸ Rivier, Principes du Droit des Gens (1896), Vol. I, p. 148 Google Scholar; Bingham, Report on the International Law of Pacific Coastal Fisheries (1938), p. 47; Leonard, International Regulation of Fisheries (1944), p. 11; Oppenheim-Lauterpacht, , International Law (7th ed., 1948), Vol. I, p. 143 Google Scholar; Azcárraga, loc. cit., pp. 78–80.

The following do not subscribe to the imperium-dominium view: Ortolan, Règles internationales et diplomatic de la mer (2nd ed., 1853), Vol. I, p. 116 Google Scholar et seq.; Creasy, First Platform of International Law (1876), p. 234; Calvo, , Le droit international théorique et pratique (5th ed., 1896), Vol. I, p. 479 Google Scholar; Lapradelle in 5 Revue de droit international public (1898) 347; Fauehille, op. cit., p. 132 et seq.

⁷⁹ Statutes, Vol. III, p. 115. The continental shelf proclamations, like the Truman Proclamation, expressly reserve the status of territorial waters, so that no “tidelands” dispute is raised by them directly. The legislation, however, is expressed to operate outside “territorial limits.” The area of “proclaimed waters” extends from the high-water mark, so that it seems that the Commonwealth is asserting that the “territorial limits” of the States are the high-water mark.

⁸⁰ The title of the Australian States to the three-mile belt is in fact dependent upon the view that Regina v. Keyn, insofar as it held that the realm ends at the low-water mark, was wrongly grounded on the assumption that jurisdiction over territorial waters excludes a proprietary interest. [1876] L.R. 2 Ex. Div. 63; Blackpool Pier Co. v. Fylde Union (1877) 36 L.T. 251; cf. Compagnie Française des Cables Télégraphiques v. Administration Française des Douanes, in 22 Revue de droit international (1938) 271; Territorial Waters (Germany) Case in Annual Digest of Public International Law Cases, 1919–22, Case No. 63.

⁸¹ Secretary of State for India v. Chelikani Rama Rao, [1916] L.R. Ind. App. 192; Att. Gen. for Canada v. Att. Gen. for Ontario, [1898] A.C. 700; Re Quebec Fisheries (1917), 35 D.L.R. 1; Att. Gen. for Canada v. Att. Gen. for Quebec, [1922] 1 A.C. 413; Holyman v. Eyles, [1947] Tas. S.R. 11; Chapman v. Rose, [1914] Q.S.R. 302; D. v. Commissioner of Taxes, [1941] Q.S.R. 218; Territorial Waters Jurisdiction Act, 1878, 41 & 42 Vict., c. 73.

⁸² Perhaps the interest now asserted by the United States in the continental shelf supports the view that the sea bed of the shelf is as much the public domain (in Australia Crown land) as the sea bed of territorial waters. That interest has been asserted in stages. In 1946 a bill containing reference to U. S. rights in the sea bed outside the States’ boundaries was vetoed. H. J. Res. 227, 79th Cong., 2nd Sess.; 92 Cong. Rec. 8869, 9642, 10660. Further references were incorporated in subsequent bills, notably the Submerged Lands Act, 1953, 67 Stat. 29, sec. 9, this Journal, Supp., Vol. 48 (1954), p. 109. The Outer Continental Shelf Lands Act, 1953, 67 Stat. 462, sec. 3(a), this Journal loc. cit., p. 110, states: “It is hereby declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this Act.” This, as the title of Christopher’s paper in 6 Stanford Law Review (1953) 23 et seq. suggests, is the “key to a new frontier.” In U. S. v. California (1947), 332 U. S. 19, Mr. Justice Frankfurter drew a distinction between imperium and dominium of the sea bed (at p. 44), but Mr. Justice Black at least seems to have equated them (at p. 26); see Metcalfe, in 4 Syracuse Law Review (1952) 60 et seq., and Blanton, in 5 South Carolina Law Quarterly (1953) 437, for discussion on the coalescing of imperium and dominium.

⁸³ (1933) 49 C.L.R. 242.

⁸⁴ At p. 250.

⁸⁵ “The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.”

⁸⁶ At p. 271 et seq.

⁸⁷ Sec. 51 (xxix).

⁸⁸ (1937) 58 C.L.R. 528.

⁸⁹ At p. 585.

⁹⁰ At p. 555.

⁹¹ Papua and New Guinea Act (Commonwealth), No. 9 of 1949.

⁹² A/258, Dee. 12, 1946. See France’s statement in A/C. 4/85.

⁹³ In addition see Mainka v. Custodian of Expropriated Property (1924), 34 C.L.R. 297; Porter v. The King, ex parte Yee (1926), 37 C.L.R. 432.

⁹⁴ R. v. Christian, [1924] S.A.L.R. App. D. 101; Winter v. Minister of Defence, [1940] S.A.L.R. App. D. 194; Westphal v. Conducting Officer, [1948] 2 S.A.L.R. 18; Minister of the Interior v. Bechler, [1948] 3 S.A.L.R. 409; Ex parte Schwietering, [1948] 3 S.A.L.R. 378; Fall v. South African Railways, [1949] 1 S.A.L.R. 638; Van Rooyen v. South African Railways, [1949] 1 S.A.L.R. 640.

⁹⁵ Tagalea v. Inspector of Police, [1927] N.Z.L.R. 883; In re Tamasese, [1929] N.Z.L.R. 209; Nelson v. Braisby (No. 2), [1934] N.Z.L.R. 559.

⁹⁶ Writers who admit property in the three-mile limit admit a corresponding extension of the national boundary. Moodie defines the continental shelf doctrine as introducing a completely new concept into the field of boundary-making. From the 200-meter isobath the boundary is a descending vertical plane; at the outer edge of territorial waters it is vertical plane from the sea bed usque ad caelum; in between it is an inclined lateral plane representing the surface of the shelf. The Advancement of Science, Vol. 11 (1954), No. 41, p. 44. See Boggs, in Geographical Review, Vol. 41 (1951), p. 185.

⁹⁷ Colonial Boundaries Act, 58 & 59 Vict., c. 34, applied to the Commonwealth by covering clause 8 of the Constitution.

⁹⁸ Jolley v. Mainka (1933), 49 C.L.R. 242, at p. 279.

⁹⁹ The Indian Delegation to the General Assembly objected to trusteeship agreements not recording that sovereignty resides in the people. A/258. On the system generally, see Parry, in 26 B.Y. (1949) 122, and 27 B.Y. (1950) 183.

¹⁰⁰ As the International Court put it in the Anglo-Norwegian Fisheries Case, I.C.J. Reports, 1951, p. 133: “there is one consideration not to be overlooked, the scope of which extends beyond purely geographical factors: that of certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage.”

¹⁰¹ A/CN.4/SB.119, p. 20. See also A/CN.4/SB.66, pp. 6–15. South Africa and Yugoslavia agreed with the separation. A/2456, pp. 68 and 71.

¹⁰² A/CN.4/48, pp. 61–62. Of course the duty of non-discrimination implies a lack of sovereignty in the beds and this prompted the British objection to the draft. A/CN. 4/SB.120, p. 17, as stated by Brierly.

¹⁰³ See British comments, A/2456, p. 70.

¹⁰⁴ As a result the draft articles on sedentary fisheries were erased and the Report emphasizes that the term “natural resources” in Art. 2 is wide enough to cover fisheries “permanently attached to the bed of the sea.” A/CN.4/L.45, Add. 1, Ch. III; A/2456, par. 70; see Yepes, A/CN.4/SB.207, par. 12; Lauterpacht, par. 13; Alfaro, par. 16; Hsu, par. 20.

¹⁰⁵ Mouton, op. cit., p. 283; Higgins & Colombos, op. cit., p. 55; Gidel, op. cit., p. 500; Kerno, A/CN.4/SB.119, par. 74. The Saudi Arabian and Bahrein proclamations expressly reserve pearling from the regime of the shelf. This, however, is not because pearling and oil-drilling were viewed as legally distinct categories, but because pearling in the persian Gulf is a matter of special customary law based, as François says (A/CN. 4/SR.120, par. 22; A/CN.4/42, p. 59), on “traditions respected by several states.” Originally the divorce of sea bed and subsoil was in response to the view that the subsoil may be occupied from the shore, as in the case of coal mines, while the sea bed, if susceptible of occupation at all, requires different rules to avoid a collision between proprietary rights and the freedom of the seas. Oppenheim-Lauterpacht, op. cit., pp. 575–577. Some publicists, notably Mouton, have gone further and erected a pragmatic legal distinction between sea bed and subsoil which inhibits any inclusion of the features of each within the same general status. Higgins and Colombos did not adequately explore the reasons for treating the sea bed as legally analogous to the sea. There is no physical entity called “sea bed” which can be differentiated from subsoil, although Spiropoulos thinks there is, A/CN.4/SR.207, par. 37. Removal of a grain of rock from the sea bed is disturbance of the subsoil.

¹⁰⁶ Mouton’s discussion only illustrates the artificiality of the distinction. Op. cit., p. 283.

¹⁰⁷ See communications of France, Belgium, and Norway, A/2456, pp. 52, 43, 64; Khoury, A/CN.4/SR.119, par. 107.

¹⁰⁸ Grotius himself admitted that it may be possible to prohibit fishing where the supply is exhaustible (“puta piscaturam qua dici quodammodo potest pisces exhauriri”). The Freedom of the Seas (Magoffin ed., 1916), p. 43.

¹⁰⁹ In his detailed study of the evolution of the right of freedom of fishing in Roman and feudal law, Fenn does not cite any statements of doctrine including sedentary species in the same legal category as free-swimming fish. Op. cit. The exclusive right of “fishing” accorded French fishermen off Newfoundland in 1713, and regulated by convention in 1857, was alleged by Great Britain to be limited on interpretation of the word “fish” to the taking of fish stricto sensu and not Crustacea such as lobsters. The British argument, strongly contested by the French Government, is authority, perhaps, for arguing that freedom of “fishing” is limited to exploitation of free-swimming fish. Adler in 17 Law Quarterly Review (1901) 263. The British argument was abandoned in the Convention of April 8, 1904. On the other hand, seals are mammals, yet are subject to the doctrine of the freedom of the seas. English law contains no doctrine on mollusks and Crustacea, and Scottish law is indefinite. In Duke of Portland v. Gray (1832), 11 S. 14, however, it was held that a grant of land “cum piscationibus” included “only fish eiusdem generis which would not include lobsters.”

¹¹⁰ The British Government denied the analogy between coral beds and seal fisheries both “as to the principles governing the two cases,” and “the facts to which the principles should be applied.” It argued that the analogy “between the claims to protect seals in the Behring Sea, and the principles applicable to coral reefs and pearl beds is unwarranted.” International law recognizes the right of a state to claim portions of the soil under the sea. “Such claim may be legitimately made to oyster beds, pearl fisheries and coral reefs; and, in the same way, mines within the territory may be worked out under the sea below low-water mark. There is no analogy between a claim to property in and to protect swimming animals, such as fish and seals, and a like claim in respect of oyster, pearl or coral beds.” Speaking generally, the British Government defined the freedom of the sea as including the right “to take therefrom at will and pleasure the produce of the sea,” and it may, in view of the above quotations, be concluded that “produce” in this context means free-swimming, or at least mobile, organisms, and organisms included in the term plankton. Parl. Pap. 1893, Behring Sea, U. S. No. 4 (Cd. 6921), pp. 51, 59, being a summary of the British Case (Cd. 6918) and Counter-Case (Cd. 6920).

¹¹¹ See also the argument of the Colombian delegate at the 1930 Codification Conference where he included pearls and petroleum in the term “natural resources.” L.N. 351(b) M. 145(b). 1930. V., p. 150.

¹¹² Hurst in 34 Grotius Society Transactions (1949) 166.

¹¹³ Op. cit., p. 135; Gidel, op. cit., pp. 488–500.

¹¹⁴ This was intended as a restraint upon exhaustive exploitation, but it could equally apply in the above context. A/CN.4/L. 45, Add. 1, Ch. III; A/2456, par. 71. See, generally, Lauterpacht, The Function of Law in the International Community (1933), p. 98; The Swift, [1901] P. 168, illustrating a conflict between property right in oysters and the right of navigation, actually decided on the ground of negligence of the navigator. See State v. Taylor, 27 N.J.L. 117; Fleet v. Hegeman, 14 Wend. (N.Y.) 42; Decker v. Fisher, 4 Barb. (N.Y.) 592; Lowndes v. Dickerson, 34 Barb. (N.T.) 586.

¹¹⁵ A/CN.4/17, p. 31. In their communications to the Commission a number of states referred to the inherent ambiguity in the term “sedentary fisheries” as used by François and adopted by the Commission. A/2456, especially France, p. 52; Netherlands, p. 62; Norway, p. 64; Philippines, p. 65. As Denmark pointed out (p. 48), there are arguments favoring dominium of organisms trapped in installations, but they are different from the arguments relating to the identification of the natural products of the sea bed. A/CN.4/SR. 120, par. 6.

¹¹⁶ Smith, op. cit., p. 121.

¹¹⁷ 4 B.Y. (1923–24) 34.

¹¹⁸ A/2456, p. 70.

¹¹⁹ Loc. cit.

¹²⁰ op. cit., p. 190; see also Hyde, , International Law (2nd ed., 1945), Vol. I, pp. 759–60.Google Scholar Scelle admits that ownership of sedentary fisheries has in the past implied ownership of the sea bed. A/CN.4/SR. 119, par. 108. The fixture argument seems to be adopted by Córdova, A/CN.4/SR. 205, par. 77. Mouton challenges the use of the term “fructus” but does admit a sort of property right in the banks. Op. cit., p. 138 et seq.

¹²¹ Sea Fisheries Act, 1868, 31 & 32 Vict., c. 45, s. 41. Removal of all marine products is a common law right which can only be altered by a grant of several fishery. Goodman v. Mayor of Saltash (1882), 7 App. Cas. 633; Corporation of Truro v. Rowe, [1902] 2 K.B. 709. The Court of Appeal in Foster v. Urban District Council of Warblington, [1906] 1 K.B. 648, however, does seem to have implied that proprietary rights in a tidal area involved proprietary rights in objects upon it. Fletcher Moulton, L.J., said that the right of oyster-laying “would exist as a reasonable exercise of his ownership of the soil by an individual in whom the soil of the foreshore was vested.” In addition, in Scratton v. Brown (1825), 4 B. & C. 485, it was held that a grant of oyster layings passes the soil. See The Swift, [1901] P. 168. The classic case of Bagot v. Orr, 2 Bes. & Pul. 472, is unsatisfactory because it turned on a point of pleading (Moore, The Law of Fisheries, p. 96) ; Hall, An Essay on the Rights of the Crown and Privileges of the Subject in the Sea-shores (2nd ed., 1875), p. 209; Lemmon, Public Rights in the Seashore (1934), p. 90. It was argued (quoting Grotius) that freedom of fishing implied freedom to remove shells and shellfish from the seashore. The court left open the question whether a distinction was to be drawn between fish and shellfish.

¹²² (1855) 18 How. (U. S.) 71. See Murphy v. Ryan (1868), 2 Ir. Rep. C. L. 143; Grace v. Willetts (1888), 50 N.J.L. 414.

¹²³ Rankine, Land Ownership in Scotland, p. 236. In Parker v. Lord Advocate (1904), 41 S.L.R. 491, [1904] A.C. 364, it was held that the right of the Crown to mussels was not a public but a patrimonial right because the mussels are “closely associated with the ground.” Oysters were mentioned in the same context. On limpets see Hall v. Whillis (1852), 14 D. 324; lobsters, Duke of Portland v. Gray (1833), 11 S. 14.

¹²⁴ (1868) 6 M. 99. See also Lindsay v. Robertson (1868), 7 M. 239.

¹²⁵ Parker, and Haswell, , A Text Book of Zoology (1921), Vol. I, p. 685 Google Scholar; Fowler and Allen, The Science of the Sea (1928), p. 302; Herdman, The Pearl Oyster Fisheries of the Gulf of Manaar, Report to the Government of Ceylon (1903), Vol. I, pp. 125–146; Nicholls, , in Reports of the Great Barrier Reef Committee (1931), Vol. III, pp. 26–29.Google Scholar

¹²⁶ Fulton, referring to the Convention of Paris of August 2, 1839, reserving oyster beds in Granville Bay exclusively for French fishermen, suggests that this implies a recognition by the British Government that sedentary fisheries require “special treatment.” Op. cit., p. 612. The instance he cites is probably explained on the ground that Granville Bay is inland waters, but Fulton’s principle has wide currency. Higgins and Colombos say they present “special features,” op. cit., p. 100. See the views of the British Government in H. C. Deb. 5s. 163, col. 1417–18, where the Under Secretary for Foreign Affairs stated that “pearl fisheries stand on a different footing to the ordinary kind of fishing in the waters of the sea.”

¹²⁷ Statutory Rules, 1953, No. 84.

¹²⁸ A/CN.4/L.45, Add. 1, Ch. III; A/2456, par. 70.

¹²⁹ See Fauchille, op. cit., p. 147.